S.D. PLAINTIFF AND: EASTERN REGIONAL INTEGRATED HEALTH AUTHORITY FIRST DEFENDANT AND: CHILD, YOUTH v. FAMILY, 2019 NLSC 10

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : S.D. v. Eastern Regional Integrated Health Authority, 2019 NLSC 10 Date : January 24, 2019 Docket : 200901T1808 BETWEEN: S.D. PLAINTIFF AND: EASTERN REGIONAL INTEGRATED HEALTH AUTHORITY FIRST DEFENDANT AND: CHILD, YOUTH AND FAMILY SERVICES SECOND DEFENDANT Before: Chief Justice Raymond P. Whalen Place of Hearing: St. John's, Newfoundland and Labrador Date of Hearing: June 7, 2018

Summary: In this Application the proposed amendments to the Pleading were not pleaded with sufficient particularity, or are issues that do not arise out of the same facts as set out in the original Statement of Claim. The deficiencies are not minor or easily rectified. Accordingly, leave to amend the Statement of Claim in the manner proposed is denied.

Appearances: Gregory A. French, Q.C. Appearing for The Public Trustee, as and Karl W.G. Dlugosch guardian ad litem for the Plaintiff Allison M. Whelan Appearing on behalf of the First and Second Defendants Authorities Cited: CASES CONSIDERED: Butler v. Kloster Cruise Ltd. (1992), (NL SC), 311 A.P.R 138, 98 Nfld. & P.E.I.R. 138 (Nfld. S.C.(T.D.)); Petten v.E.Y.E. Marine Consultants (1994), (NL SC), 373 A.P.R. 313, 120 Nfld. & P.E.I.R. 313 (Nfld. S.C.(T.D.));Newfoundland & Labrador Housing Corp. v. Clarke (1993), (NL CA), 331 A.P.R. 11, 105 Nfld. & P.E.I.R. 11 (Nfld.C.A.); Harvey v.

Memorial University of Newfoundland, 2013 NLTD(G) 51; Duryea v. Kaufman (1910), 21 O.L.R. 161; Stratford GasCo. v. Gordon (1892), 14 P.R. 407; Heugh v. Chamberlain, [1877] 25 W.R. 742; Knowles v. Roberts (1888), 38 Ch. D. 263; Dempsey v.Envision Credit Union, 2006 BCSC 750; Lundrigan v. Short, 2000 CarswellNfld 242 (S.C.(T.D.)); Lacroix v. Macdonald and HoffeAppraisals Ltd., 2015 NLTD(G) 85; Marsh v. Imperial Oil Ltd./Cie Petroliere Imperiale Ltée, 2001 NFCA 32; Snow (Guardian ad litemof) v. Kashyap (1995), (NL CA), 389 A.P.R. 182, 125 Nfld. & P.E.I.R. 182 (Nfld. C.A.); Pintea v. Johns, 2017 SCC23; Furlong v.

Non-Marine Underwriters, Lloyd’s London (1997), (NL SC), 475 A.P.R. 245, 153 Nfld. & P.E.I.R.245 (Nfld. S.C.(T.D.)) RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Whalen, C.J.: INTRODUCTION [1] This is an Application by the Plaintiff for leave to amend the Statement of Claim pursuant to Rule 15.02(1)(

c) of Rules of theSupreme Court, 1986, S.N.L. 1986, c. 42, Sch. D. [2] The Plaintiff filed a hand-written Statement of Claim, prepared without the assistance of counsel, on April 13, 2009.

Theoriginal claim alleged that the Plaintiff had been assaulted by an access worker employed by Eastern Regional Integrated HealthAuthority (“Eastern Health”); that she was intimidated, harassed and discriminated against by several social workers employed by Child,Youth and Family Services (“CYFS”); and that she was negligently prescribed medications that were used against her, causing theremoval of her children from her custody.

The Statement of Claim concluded by stating, “As a result of the First and Second[defendants] mistakes and actions of negligence the Plaintiff suffered damages and claims damages to be assessed and such further reliefas the Honourable Court deems just”. [3] A Statement of Defence was filed April 24, 2009. [4] The Public Trustee was appointed as the guardian ad litem for Ms. S.D. on December 12, 2012.

On December 18, 2017, thePublic Trustee brought this Application to amend the Statement of Claim. [5] The proposed Amended Statement of Claim, a copy of which was attached to the Application, sets out the nature of theconduct complained of at paragraphs 9 and 10. These paragraphs provide: 9. The [Plaintiff] states that the Defendants had a duty and obligations to the Plaintiff, and the Defendants have breached their dutiesand obligations to the Plaintiff, particulars of which include, inter alia: i.

Placing vague, unreasonable, and discriminatory requirements on the Plaintiff with respect to herability to have access and custody of her children;

ii. Failing to follow through with permitting increased access and custody, even when the Plaintiff complied with the Defendants’ stated requirements; iii. Failing to properly consider the advice and recommendations of the Plaintiff’s physicians; iv. Breaching the Plaintiff’s confidentiality; v. Limiting the Plaintiff’s unsupervised access to her children, for no legitimate reason; vi. Ignoring the requests and pleas from the Plaintiff; vii. Continuing to insist marijuana use was an issue, when the Plaintiff submitted to drug screenings, that consistently were negative; viii.

Improperly focusing on the Plaintiff’s mental health issues as reason for refusing the Plaintiff access and custody to her children; ix. Not facilitating counselling for the Plaintiff, even after mandating it; (hereinafter the “Defendants’ Conduct) 10. In addition to foregoing, The Plaintiff was employed by Compassion Home Care as a home support worker. On or about October 26, 2015, the Plaintiff was terminated from her employment.

One of the reasons given for the termination was outlined in correspondence to the Plaintiff: Eastern Health upon investigation on complaint from the client’s daughter regarding theft, has advised us that they will not support any future employment by our company of [S.] D. with vulnerable clients.

If during a future audit or visit by Eastern Health, it is found that S.D. is still employed they will make a formal complaint to the Adult Protection Agency (APA). (hereinafter “the Compassion Home Care Issue”) [ 6 ] Throughout this judgment I will also use “the Defendants’ Conduct” to refer to the allegations in paragraph 9 and “the Compassion Home Care Issue” to refer to the allegations set out in paragraph 10. [ 7 ] The Defendants, in their response to this application, object to the proposed amendments relating to the Defendants’ Conduct and the Compassion Home Care Issue and submit that leave should not be granted to amend the Statement of Claim.

ISSUE Should the Plaintiff be permitted to amend her Statement of Claim, in whole or in part? LAW The Rule [ 8 ] Rule 15.02 provides, in relevant part: 15.02.

(1) If an amendment does not include the addition, deletion, substitution or correction of the name of a party to a proceeding, a party may amend a pleading filed by that party… :

… (

c) at any time with leave of the Court on such terms as it thinks just.

(2) The Court may allow an amendment notwithstanding the effect of the amendment will be to add or substitute a new cause ofaction, if the new cause of action arises out of the same or substantially the same facts as the original cause of action. The Test [9] The parties generally agree on the considerations the Court should take into account in determining whether to grant leave toamend pursuant to Rule 15.02(1)(c). They both rely on Butler v. Kloster Cruise Ltd. (1992), (NL SC), 311 A.P.R 138,98 Nfld. & P.E.I.R. 138 (Nfld.

S.C.(T.D.)), per Russell, J., at para. 12 which states: 12. … To be allowed, an amendment (1) must not cause injustice to the other side, (2) must raise a triable issue, (3) must not be embarrassing, and (4) must be pleaded with particularity. … [10] In determining whether permitting the amendment would result in an injustice to the opposing party, the Court is concernedonly with an injustice that cannot be adequately compensated in costs (Petten v. E.Y.E. Marine Consultants (1994), (NL SC), 373 A.P.R. 313, 120 Nfld. & P.E.I.R. 313 (Nfld. S.C.(T.D.)), per Green, J., as he then was, at para. 90).

Where an award forcosts can satisfactorily alleviate the injustice caused to the other party, this will not be a basis for refusing the amendment. [11] Referring to the test as set out by Russell, J., Green, J., went on in Petten to say: 92. Even if the amendment can be made without injustice to the other side, it still ought not to be granted as Russell, J., in Butler v.Kloster Cruise Limited et al, supra, emphasizes, unless it appears that the proposed amendment will comply with the other rules ofpleading.

Thus, the Court, before allowing an amendment, ought to be satisfied that the presence of the amendment could not lead to asuccessful application by other parties:

(1) Under Rule 14.24, that the amendment does not disclose a cause of action, i.e., that it properly raises a triable issue.

(2) Under Rule 14.03, that the pleading contains embarrassing material or is otherwise improperly expressed.

(3) Under Rule 14.11 that the pleading does not supply proper particulars. 93. In other words, in asking for leave to amend, the party seeking amendment must be able to demonstrate that, evenassuming there is otherwise no injustice that could not be remedied in costs, the proposed amendments are defensible, as properpleadings. If not, to allow them would in itself amount to an injustice to the other parties. 94.

It is necessary that the Court address these issues at the time of the application to amend, especially if the application is broughtnear to or at the trial, since to allow it without such a consideration could lead to further delays and prejudice later on. All of the normalpre-trial procedures relating to pleadings ought to be telescoped into the one application. 95.

The basic notion behind Rules 14.03, 14.11 and 14.24 is that pleadings should be so framed that they contain all material facts in asufficiently clear, organized and concise form such that all the constituent elements of each cause of action being alleged are set out. Thedefendant is entitled to know the causes of action to which he or she must respond and the nature of the factual basis upon which each ofthe causes of action is alleged to be founded.

This is merely an exemplification of one of the general themes of the Rules: conduct ofproceedings must be characterized by disclosure so that other parties will not be taken by surprise. The defendant must not be left tospeculate or guess the particulars of the case alleged against him or her or of the remedy sought: Genge v. F.B.D.B. (1990), (NL SC), 85 Nfld. & P.E.I.R. 275; 266 A.P.R. 275 (Nfld. T.D.).

96. A corollary of these notions of clarity, conciseness and particularity is that, particularly in cases of multiple parties and multiplecauses of action, the material facts must be pleaded in such a way that the defendant will be able to discern what facts are alleged tosupport which causes of action in favour of which parties. Again, the defendant must not be left to speculate as to whether particularfactual allegations are relevant to one claim and not to another. … [Emphasis Added] [12] In determining whether the amendment discloses a reasonable cause of action, the Court applies the same test as that appliedon an application to strike out a pleading brought pursuant to Rule 14.24(1)(

a) and “the threshold test is a low one” (Petten, at para. 99). The amendment must not be rejected unless it is “plain and obvious” that it “discloses no reasonable claim and that it is certain to fail”(Petten, further at para. 99, and Newfoundland & Labrador Housing Corp. v. Clarke (1993), (NL CA), 331 A.P.R. 11,105 Nfld. & P.E.I.R. 11 (Nfld. C.A.). As noted, in Harvey v.

Memorial University of Newfoundland, 2013 NLTD(G) 51, at para. 11, “…At this stage, it is to be taken that the allegations in the amendment are true …”. [13] In determining whether a proposed amendment to a pleading is embarrassing, the Court is not concerned with whether theopposing party is embarrassed in the ordinary sense of the word i.e. that the proposed amendment is shameful or humiliating to theopposing parties.

This is an example where we use words in our legal lexicon that have definition only through legal precedent, and itslegal definition is not connected to the meaning that the words would normally be ascribed in modern language. [14] In the present context, the word embarrassing is used to capture a broad range of material defects in a pleading or proposedamendment. For instance, in Duryea v. Kaufman (1910), 21 O.L.R. 161 at 165, Justice Riddell, relying on Stratford Gas Co. v. Gordon(1892), 14 P.R. 407; Heugh v. Chamberlain, [1877] 25 W.R. 742; and Knowles v. Roberts (1888), 38 Ch.

D. 263, noted that a pleadingwill be embarrassing to the opposing party where it alleges facts that are wholly immaterial to the outcome of the case, or where theproposed amendments “are so irrelevant that to allow them to stand would involve useless expense and would prejudice the trial of theaction by involving the parties in a dispute that is tangential to the main claim”. As would pleadings that “fail to state a real issuebetween the parties in an intelligible way” (Dempsey v. Envision Credit Union, 2006 BCSC 750, at para. 86; see also Lundrigan v. Short,2000 CarswellNfld 242 (Nfld.

S.C.(T.D.)), per Russell, J., at para. 4). Still other cases have found that a proposed amendment would beembarrassing where it, “brings forward a claim that the plaintiff is not entitled to make use of”, “leaves out particular facts which wouldgive the defendant the knowledge of what the basis of the plaintiff’s case is and on which the plaintiff will have to rely at trial in order tomake out a case”, or “does not comply with the minimum requirements of the rules of pleading” in some way (Petten, at para. 97). InLaCroix v.

Macdonald and Hoffe Appraisals Ltd., 2015 NLTD(G) 85, Murphy, J. stated that pleadings will be embarrassing where theopposing party will be left to speculate as to the legal and factual basis for the claim (para. 25). [15] In

summary, if the amended pleading is materially defective in that it does not comply with the minimum requirements ofpleading as outlined in Rule 14, then the amendment will be embarrassing and leave to amend denied. [16] In determining whether the proposed amendment contains the necessary particulars of the claim, the Court should considerwhether the opposing party would be able to respond properly to the amended pleading or whether they would be required tosubsequently apply for further particulars.

Faour, J., in Harvey at para. 9 notes that, unlike the threshold test for determining whether theamendment discloses a reasonable cause of action, this is “a higher requirement”. Justice Green in Petten at para. 100 stated: 100. … The party seeking an amendment especially at or near the trial, ought to be scrupulous in presenting the amendment, in such away that all reasonable particulars, as may be required by the rules of pleading or which may be required by a defendant actingreasonably, are provided.

It is not appropriate to allow an amendment which, though not capable of being refused because it has nochance of succeeding is nevertheless otherwise deficient in supplying appropriate particulars in a way that the other side would beprejudiced in being able to respond properly and would likely lead that other party to apply subsequently for those particulars, thusfurther delaying the trial.

Other Considerations [17] In addition to the factors outlined in Butler, counsel for the Defendants also points to the wording of Rule 15.02(2), whichstates that an amendment that adds a cause of action may be allowed only “if the new cause of action arises out of the same orsubstantially the same facts as the original cause of action” (see also Petten, at para. 101). In Marsh v.

Imperial Oil Ltd./Cie PetroliereImperiale Ltée, 2001 NFCA 32, the Court of Appeal interpreted this phrase as referring “to those events and interrelated circumstancesthat are part of the relationship or involuntary interaction between the parties in respect of which the original statement of claim wasissued.” (para. 43). [18] I am also guided by the comments of Marshall, J.A., in Snow (Guardian ad litem of) v. Kashyap (1995), (NL CA), 389 A.P.R. 182, 125 Nfld. & P.E.I.R. 182 (Nfld. C.A.), at para. 87: 87.

While the foregoing rule grants a judicial discretion in deciding whether an amendment should be allowed, that discretion must beexercised judicially. Rule [15.02(3)] is derived from the English Rules of Court. An important and long recognized principle governingthe granting of leave to amend under the corresponding English Rules is that all such amendments ought to be made as are necessary forthe purpose of determining the real questions in controversy.

In furtherance of this cardinal principle, the court usually will adopt thestance that its objective is to decide the rights of the parties and no error or mistake ought to go uncorrected if it can be done withoutinjustice to the other party … [19] As noted by Justice Murphy in LaCroix, while Justice Marshall was referring to the former Rule 15.02(3) in the above notedparagraph, “the principles set forth in that decision are equally applicable to the entirety of Rule 15.02” as it is currently set out. [20] An additional consideration that arises in this case is the need to ensure access to justice for self-represented litigants.

As Ipreviously noted, the original Statement of Claim was prepared and filed by the Plaintiff without the assistance of counsel. Where this is

the case, judges must ensure that, “procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons”, and must recall that “Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case” (see the Canadian Judicial Council’s Statement of Principles on Self-Represented Litigants and Accused Persons, endorsed by the Supreme Court of Canada in Pintea v. Johns , 2017 SCC 23 ).

Whenever exercising discretionary power a Court must balance the equities of the situation with which it is seized, with a view of avoiding any injustice to the parties. ANALYSIS [ 21 ] Allow me to examine whether, in this case, leave to amend should be granted to the Plaintiff. Amendments Relating to the “Defendants’ Conduct” [ 22 ] The allegations which constitute “the Defendants’ Conduct” were set out above in paragraph 5. The allegations set out there generally relate to the Plaintiff’s treatment by the Defendants, particularly as this affected her access to and custody of her children.

(1) Would Permitting the Amendment Result in an Injustice? [ 23 ] In determining whether to grant leave to amend the pleading to include the allegations relating to the Defendants’ Conduct, I must first consider whether there would be any injustice caused to the Defendants by allowing the amendment, which could not be compensated with an award of costs. [ 24 ] The Plaintiff submits that no injustice will result to the Defendants if the amendment relating to the Defendants’ Conduct is permitted.

The Plaintiff notes that, at this point, lists of documents have not yet been exchanged and discoveries have not yet taken place. While the Plaintiff concedes that the amendment is coming long after the Statement of Claim was originally filed, counsel for the Plaintiff notes that the Public Trustee was only appointed as guardian in 2012, and the current counsel was only retained in 2016. [ 25 ] By contrast, the Defendants submit that they will indeed suffer non-compensable prejudice if the amendments are permitted.

Most importantly, the Defendants submit, allowing the amendments at this late stage will mean that the Defendants will not be able to mount a proper defence. They allege that evidence will be lost, as the relationship between the Plaintiff and the Defendants had begun in 2000, some nine years before the issuance of the original Statement of Claim.

They submit that now, some 9 years after the original Statement of Claim was issued, essential documentation may have been destroyed and key witnesses may be deceased or unavailable, or may not remember what occurred such a long time ago. [ 26 ] Despite the Defendants’ objections, I am not satisfied that allowing the amendment at this stage would result in non- compensable injustice. The Defendants suggestion that documentary evidence “will likely be destroyed” and that “key personnel may be deceased or no longer employed with the Defendants” is speculative.

They have not cited any specific witness that may now be unavailable or referred to any specific records that would have been destroyed. Further to this, while it is clear that a significant amount of time has elapsed since the original Statement of Claim was filed, the relevant documentary evidence and key witnesses are likely substantially similar for both the original claim and the portions of the Amended Statement of Claim relating to the Defendants’ Conduct.

Indeed, I view the amendments relating to the Defendants’ Conduct as being, largely, an elaboration of the original claims of harassment, intimidation, discrimination, mistake, and negligence alleged in the Statement of Claim. Steps should have already been taken to ensure that evidence and records relating to the matters in dispute were retained.

(2) Does the Amendment Disclose a Reasonable Cause of Action? [ 27 ] The Defendants have conceded this point. Given the low threshold to be met, I am satisfied that the amendments relating to this issue disclose a reasonable cause of action.

(3) Is the Amendment Embarrassing? [ 28 ] As outlined earlier, a proposed amendment may be considered embarrassing where it fails to comply with the minimum requirements of the rules of pleading and is therefore fundamentally flawed. To this extent, in the present case, determining whether the amendments would be considered embarrassing is linked to the analysis of whether sufficient particulars are provided such that the Defendants are not left to speculate regarding the legal and factual basis for the Claims.

(4) Is the Amendment Pleaded with Sufficient Particularity? [ 29 ] The Defendants first submit that the Plaintiff’s use of the words “ inter alia ” in the opening of paragraph 9 is inappropriate. They suggest that to permit an amendment nine years after the Statement of Claim was filed which suggests that further unspecified particulars regarding the conduct complained of may be subsequently added is inappropriate. I would agree.

On this point, see LaCroix . [ 30 ] Second, the Defendants submit that it is impossible to discern which Defendant is required to respond to each of the specific allegations enumerated in subparagraphs 9(1)-(9).

While, in reading the whole of the Statement of Claim, it appears that the specific allegations enumerated in at least some of those subparagraphs are directed towards the purported actions of the Second Defendant, with the First Defendant being liable as a result of its relationship with the Second Defendant, the claims are often not defendant specific and the Defendants’ may reasonably be left wondering which of them must respond to each allegation. [ 31 ] It is also not possible to discern when the alleged conduct occurred as there are no dates or date ranges provided.

Indeed the original Statement of Claim provided more information regarding the times at which various alleged actions occurred. [ 32 ] Also, many of the allegations included in subparagraphs 9(1)-(9) of the proposed Amended Statement of Claim are conclusory statements that fail to detail the facts underlying each of them. For example, subparagraph 9(1) provides that the Defendants’ placed “vague, unreasonable, and discriminatory requirements on the Plaintiff with respect to her ability to have access and custody of her children” but there is no indication of what requirements the Plaintiff is referring to.

Subparagraph 9(2) raises the same concern.

_____________________________ Raymond P. Whalen Chief Justice Subparagraph 9(3) states that the defendants failed to properly consider the advice and recommendations of the Plaintiff’s physicians,but does not specify what physicians, advice or recommendations the Plaintiff is referring to. Subparagraph 9(4) alleges that thedefendants breached the Plaintiff’s confidentiality, but it does not state what confidential information was disclosed or the nature of theconfidential information disclosed or to whom.

Subparagraph 9(6) alleges that the Defendants ignored the Plaintiff’s requests and pleas,but does not state the specific requests and pleas made (or even the general tenor of the requests or pleas). [33] The combined effect of these deficiencies leaves the proposed Statement of Claim fundamentally flawed with the Defendantsleft to speculate regarding the factual basis of the Plaintiff’s claim. The deficiencies are not minor or easily rectified and permitting theamendment would invariably result in the Defendants seeking additional particulars to resolve the questions of “who”, “when” and“how”.

As a result, I find that the proposed amendments relating to the Defendants’ Conduct are not pleaded with sufficient particularityto enable the Defendants to plead in response and, for this reason, they are also embarrassing to the Defendants. Amendments Relating to the “Compassion Home Care Issue” [34] I turn now to the proposed amendments relating to the “Compassion Home Care Issue”.

These amendments allege that EasternHealth wrote to the Plaintiff’s employer stating that, as a result of a complaint brought to its attention, it could no longer support Ms.S.D.’s employment and would contact the Adult Protection Agency if Ms. S.D. remained employed with the Compassion Care Home. This, it is alleged, led to Ms. S.D.’s termination.

The Plaintiff therefore claims for intentional interference with economic relations andnegligent infliction of economic loss, among other claims. [35] As noted above, Rule 15.02(2) requires that, where an amendment will add one or more causes of action, the new causes ofaction must arises out of the same or substantially the same facts as the original cause of action. In this case, though, it is clear that thenew causes of actions raised do not arise out of the same facts as the original causes of action.

Nor could it be said that the claims ariseout of “those events and interrelated circumstances that are part of the relationship or involuntary interaction between the parties inrespect of which the original Statement of Claim was issued”. Indeed, the amendments setting out the “Compassion Home Care Issue”raise an entirely discrete set of facts upon which these new claims are based. [36] While these new claims involve the same parties, the Compassion Home Care Issue and claims arise from a separate incident,which occurred in or about October 2015, some six years after the original Statement of Claim was filed.

They are unrelated to thePlaintiff’s original claims for assault, intimidation, discrimination, harassment, and negligent prescription of medications. [37] As far as the Compassion Home Care issue is concerned, this is not a situation where a self-represented person impreciselypleaded their claim and is now seeking to correct the deficiencies. The situation is more akin to that in Furlong v. Non-MarineUnderwriters, Lloyd’s London (1997), (NL SC), 475 A.P.R. 245, 153 Nfld. & P.E.I.R. 245 (Nfld.

S.C.(T.D.)), whereOrsborn, J., held that the proposed Amended Statement of Claim “differs radically” from the original in that it, “asserts a completely newcause of action… based on facts not contained in the original statement of claim” (para. 20). CONCLUSION [38] The amendments relating to the Defendants’ Conduct are not pleaded with sufficient particularity and are embarrassing. I alsofind that the amendments relating to the Compassion Home Care Issue do not arise out of the same or substantially the same transactionas that referenced in the original Statement of Claim.

Accordingly, leave to amend the Statement of Claim in the manner proposed isdenied. COSTS [39] The Defendants are entitled to their costs on this Application in accordance with Rule 55 of the Rules of the Supreme Court,Appendix Scale of Costs, Column 3.